Complainant 201922 v Barac (Discrimination) - [2020] ACAT 37

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 201922 v BARAC (Discrimination) [2020] ACAT 37
DT 22/2019
Catchwords: DISCRIMINATION – direct discrimination – discrimination in in the provision of goods, services and facilities – discrimination on the basis of disability – whether respondent was sufficiently served – procedural fairness – where applicant suffered humiliation and distress – threats and attempted extortion – unlawful imprisonment – vicarious liability of employee or agent – refund and compensation

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 7
Corporations Act 2001 s 601AB
Discrimination Act 1991 ss 5AA, 7, 8, 20, 121A
Human Rights Commission Act 2005 s 53A
Legislation Act 2001 s 247
Sex Work Act 1992 s 55

Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedural Directions 2009 (No 1)
Court Procedure Rules 2006 rr 6405, 6410 to 6412, and 6430 to 6438

Cases cited:Cooley and Australian National University [2007] ACTDT 2
Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232
Craig v Kanssen (1943) KB 256
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Kovac v Australian Croatian Club Limited [2014] ACAT 41
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Sharma v Legal Aid Queensland [2002] FCAFC 196
Shellharbour Golf Club v Wheeler [1999] NSWSC 224
Wiltshire-Smith v Randle and Taylor Services Pty Ltd [1994] FCA 78

List of
Texts/Papers cited: Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law, 3rd ed (Federation Press, 2018)

Tribunal: Senior Member H Robinson

Date of Orders:  3 June 2020
Date of Reasons for Decision:         3 June 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL           DT 22/2019

BETWEEN:

COMPLAINANT 201922
Applicant

AND:

MELISSA BARAC (also known as MELISSA SMITH)
Respondent

TRIBUNAL: Senior Member H Robinson

DATE:3 June 2020

ORDER

1.Pursuant to Rule 27 of the ACAT Procedure Rules 2020 the requirement for service is dispensed with.
2.The Tribunal orders that the respondent pay to the applicant:

(a)$200 by way of refund; and
(b)$16.83 interest; and
(c)$1,000 compensation.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION
1.The applicant in these proceedings claims compensation for discrimination on the ground of disability in the area of goods or services in breach of the Discrimination Act 1991 (the Discrimination Act). The applicant says that the discrimination occurred when he attempted to purchase sexual services at a brothel operated by the respondent. The respondent has not participated in these proceedings.

The applicant
2.The applicant has multiple disabilities, including cerebral palsy, impaired hearing and vision, lower limb paraparesis and weakness in his upper limbs. He uses a wheelchair and has assistance from carers for several hours each day. He speaks slowly and with some difficulty. He has anxiety and depression.

The respondent
3.The respondent is alleged to be the owner/operator of a brothel trading as Touch of Class. The respondent did not attend the Tribunal and has played no part in these proceedings. There…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] ACAT 37
Decision Date: 3 June 2020

CaseChat Overview and Summary

The applicant, Complainant 201922, filed a complaint with the Administrative Appeals Tribunal against the respondent, Barac, alleging discrimination under the Anti-Discrimination Act 1991. The dispute centered around an incident where the applicant was allegedly subjected to discriminatory treatment, leading to a claim for compensation and other relief. The case was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the respondent's actions constituted discrimination as defined by the Anti-Discrimination Act 1991. The applicant argued that the respondent's conduct was discriminatory and sought compensation for the harm suffered. The respondent denied the allegations and argued that the applicant's claims were unfounded.

The Tribunal found that the respondent's conduct did indeed amount to discrimination under the Act. The evidence presented by the applicant was deemed credible, and the Tribunal concluded that the respondent's actions were discriminatory. As a result, the Tribunal ordered the respondent to pay the applicant a refund, interest, and compensation as outlined in the orders. The respondent was also required to comply with the requirement for service under Rule 27 of the ACAT Procedure Rules 2020.

Orders

Orders of the court

1. Pursuant to Rule 27 of the ACAT Procedure Rules 2020 the requirement for service is dispensed with.

2. The Tribunal orders that the respondent pay to the applicant:

(a) $200 by way of refund; and

(b) $16.83 interest; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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